Disorder in The Courts

Activists hope a state task force will mend California's broken family court system

By Alastair Bland

WHEN AN Alabama superior court judge issued an order that Amanda Hodge's two adopted children be returned immediately to her custody out of concern for their safety following a February 2008 state-ordained forensic interview, the family court of Monterey County, where Hodge's children were living with their adoptive father, declined to cooperate. Instead, the custody battle seemed only to swing further out of Hodge's favor. She lost custody entirely, was granted supervised telephone calls only and has now not seen her children in two years. She is out $90,000 but is determined to continue fighting, and while Hodge expects the court system to strip her of another $100,000, whether she will see her children again is entirely uncertain.

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Hodge's case is hardly unique. Thousands of others like it, say activists and legal professionals, highlight what they claim is the injustice of the nation's family court system, the legal branch that handles divorce cases and the baggage that goes with them, including child abuse. Data collected from 362 cases nationwide, including 137 in California, since 2004 by Dr. Geraldine Stahly, a professor at San Bernardino California State University, indicate that family law is failing to protect abused children and, in a shocking pattern of systemic ineptitude, actually granting full custody of the abused to the accused abusers, usually fathers. An activist organization called the Leadership Council on Child Abuse and Interpersonal Violence, in fact, says that 58,000 times per year judges in American family courts grant full custody of abused children to abusive guardians.

The above studies do not differentiate between accused and convicted abusers, and skeptics may point out that groundless accusations of abuse have long been used as a weapon in aggressive custody battles.

But jaded attorneys and frustrated activists say there is definitely a problem--and it can be boiled down to financial motives.

"It becomes like a feeding frenzy in the courtroom if either of the parents has money," says Kathleen Russell, a co-founder and staff consultant at the Center for Judicial Excellence, a Marin County community-based judicial watchdog organization.

Judges, Russell explains, frequently defer families to "custody evaluators" for mandatory meetings in which the specialist interviews the parties, evaluates the situation and writes a report for the court. Many family court judges regularly appoint the same mediators, custody evaluators and child counsels time and again to assist in cases, and Russell calls the family court system a "culture of cronyism" from which a "cottage industry" of evaluators and mediators has grown and thrived.

"People get stuck with these custody evaluators and the parent with the money is the one who writes the check, and it becomes a system in which custody of the kid goes to the highest bidder," says Russell. "This system is in need of serious overhaul by eliminating profit incentives."

Evaluators are not cheap, either. In Sacramento County, the average rate for an evaluation and report is $15,000. In Marin County, evaluators may charge as much as $60,000.

"Families are being ruined emotionally and financially by this system," says Barbara Kauffman, a family law attorney in Marin County. "This system is taking children from parents who don't beat them, who don't do drugs, who are respected, who have morals, and these good parents are the ones receiving supervised visitation."

One Santa Cruz man now immersed in a 6-year-old custody battle voices an opinion shared by many in his position: that the system, with its mandatory court-appointed evaluators and systemic inconveniences, operates with the foremost objective of extracting money from families.

"They'll bleed you dry," says the man, who would give his name only as "George." "They'll never come to a final decision. They just wear you down until you have nothing left. It's not in their interest to give 50-50 custody. They want to put the squeeze on one parent."

In the infamous case of Alycia Mesiti-Allen, the 14-year-old Santa Clara girl's court-appointed attorney, Jonnie Herring, warned the court in 2006 of her concerns for the safety of Mesiti-Allen and her older brother, who had both been placed with their father, Mark Edward Mesiti, in November 2005. Herring later wrote to Santa Clara County Superior Court Judge Vincent Chiarello, "I am deeply concerned about both minors, especially Alycia."

No transfer of custody to Mesiti-Allen's mother or another relative occurred, and in August 2006 Alycia Mesiti-Allen disappeared. Almost three years later, in March 2009, police uncovered her body. Her father has been charged with her murder.

Meanwhile, "parental alienation syndrome," or PAS, has become extremely popular and very effective as a weapon in custody battles. Court-appointed evaluators and psychologists regularly diagnose parents with this "condition," which is supposedly characterized by one parent seeking to "alienate" the child from the other parent. Although PAS is not a scientifically proven theory, the syndrome is admitted frequently as evidence in custody battles, and parents marred with the PAS label often lose custody to the alleged abuser, explains Russell.

Court Reports
In July, Assembly-member Mark Leno (D-San Francisco) called for the Bureau of State Audits to investigate the family courts system in Sacramento and Marin counties. Assemblyman Bill Monning (D-Carmel) signed his support for the audit, which was approved unanimously in August in a joint vote by six members of the Assembly and six of the Senate.

"We've had families complain to us about lack of integrity in the family court system and about a lack of checks and balances," says Monning. "We're concerned that the system is not working in the best interests of the child."

The audit is intended to improve due process within the system, shed light upon the criteria used by the court in training, qualifying, and appointing custody evaluators and others specialists, and ultimately lead to placement of children in the custody of nonabusive parents.

And in May 2008 the Elkins Family Law Task Force was appointed to conduct a review of family law proceedings and recommend to the Judicial Council of California proposals that will help provide more effective and consistent rules, policies and procedures, ensure that due process is followed, and increase access to justice for families and their children.

Robin Yeamens, a family law specialist in Los Gatos, approves of some of the proposals, such as one that recommends allowing litigants to carry tape recorders into the courtroom. Currently, recorders are prohibited and litigants must pay thousands to view transcripts from their own hearings.

The task force, however, failed to address PAS, which Russell fears might limit the likelihood that Assembly Bill 612, written by Jim Beall (D-San Jose) and designed to ban the use of PAS in family court, will pass through the legislature this spring.

A public comment period currently open for opinions will close Dec. 4; after that the task force will make its recommendations to the California Supreme Court. The public is urged to participate on the comment form at www.courtinfo.ca.gov/jc/tflists/elkins.htm.

Kauffman believes that many of the procedural steps in the family court system are designed to draw money from the pockets of litigants. Connie Valentine, co-founder of the California Protective Parents' Association, recognizes the same pattern and calls it downright extortion in some cases.

She cites the case of the mother of a child allegedly abused by the father who came to Valentine for guidance. The woman, says Valentine, was unable to pay the custody evaluator the $2,200 fee. The judge threatened to give full custody of her child to the father if she could not pay before a deadline. She failed to produce the money and lost custody.

For Schillaci-Lavergne, the wheels of justice are stuck in the mud of family court bureaucracy. She has spent $1.5 million on legal fees in California and Hawaii fighting for her daughter, now 12, who remains in the full custody of her father.

And in Alabama, Hodge's nightmare goes on. Her children remain in Monterey County, and she is uncertain whether or when she will see them again--and whether she will have any money left if the day comes.

But to Hodge, the complete senselessness of the system has, at long last, begun to make perfect sense after all.

"They just want my money, and the longer I'm in court, the more money they'll get."